Thursday, February 18, 2010

Massachusetts remains one of the minority of states without a shield law to protect journalists' confidential sources. That could change if a bill to be heard by the legislature next week becomes law. The bill, House Bill 1650, would prohibit courts and government agencies from forcing members of the news media to reveal their news sources. The bill would also protect reporters against the compelled disclosure of notes, outtakes, photographs and recordings.

The bill is under review by the legislature's Joint Committee on the Judiciary, which has scheduled it for a public hearing on Tuesday, Feb. 23, at 1 p.m. in State House Room B1. If you have any interest in supporting this bill, you should show up and make your position known to the members of the committee.

Notably, the bill as drafted would cover some bloggers as well as traditional print and broadcast journalists. Coverage is not based on a journalist's employment, but on the journalist's engagement in "bona fide news gathering" for any form of news media. "News media" is defined as "any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution."

Thus, a blogger who is engaged in news gathering and who regularly gathers and disseminates news would be covered by the bill if it became law.

This bill is derived from one that was filed in the previous session of the legislature and that I helped draft as part of an ad hoc coalition of journalists, news organizations and media lawyers. That bill died without ever being reported out of the Judiciary Committee.

Wednesday, February 17, 2010

The Massachusetts Supreme Judicial Court issued an important decision today underscoring the right of the public and the press to sit in on jury selection in criminal cases. The opinion, Commonwealth v. Cohen, concludes that even a partial closure of the courtroom -- with some family members and non-parties allowed in -- can violate both the First Amendment rights of the public and press and the Sixth Amendment rights of the defendant.

The public trial right applies to jury selection proceedings ... which are "a crucial part of any criminal case." ... At that stage, "the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." ... The "sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." ... Throughout a trial, an open court room "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." ... Thus, courts recognize a "strong presumption in favor of a public trial," ... "overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The case arose out of jury empanelment in the criminal prosecution of David M. Cohen, an attorney and former Stoughton, Mass., police sergeant. On the fourth day of empanelment, Cohen's defense counsel noticed a sign on the courtroom door that said, "Jury empanelment. Do not enter." After learning that the sign had been on the door throughout the empanelment process, the lawyer moved for a mistrial. The judge denied the motion. The lawyer repeated his motion for a mistrial later the same day, after learning that members of the public were removed from the courtroom. Again, the judge denied the motion.

"The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right," the SJC concluded. Finding that there would be no other way to remedy the violation, the court ordered that Cohen be granted a new trial.

As a member of the Judiciary/Media Committee and in my capacity as executive director of the Massachusetts Newspaper Publishers Association, I am helping to disseminate the survey and compile its results. If you are a journalist who covers the Massachusetts courts, please take a moment to complete the survey and return it to me.